The Supreme Court's Uncharacteristic Caution on Marriage

In the midst of the colorful rally outside the Supreme Court, the unhinged claims of the anti-gay right, and the flood of politicians rushing to embrace marriage equality this week, for those of us following the arguments inside the Court one development stood out above all: the Supreme Court's apparent newfound caution.

Justice Anthony Kennedy, who is expected to cast the Court's swing vote, appeared to be looking for a narrow path to keep the federal government from denying benefits to legally married gay couples without touching on those couples' right to marry in the first place. And after making the bold choice to take two blockbuster cases on the nation's most controversial social issue, the majority of the Justices seemed to be searching for a way to throw one of them -- the challenge to California's Proposition 8 -- out entirely.

This cautious approach to finding constitutional protections for individual rights stands in stark contrast to the conservative majority's usual modus operandi. The Court's majority has, in general, been enthusiastically willing to undermine individual rights that already exist, routinely issuing rulings that strike down decades of jurisprudence and radically redefine our constitutional rights. While the conservative majority of the Supreme Court seems reluctant to take any great strides affirming the rights of gay people, they have shown no such scruples in stripping the rights of voters, workers, and consumers.

Far from what you might think listening to the marriage equality arguments this week, this court isn't exactly known for its judicial restraint.

The Court, for instance, expressed no regret in bulldozing a century of popularly enacted campaign finance reform laws in 2010's Citizens United. In fact, they hadn't even been asked to do so. The Court's conservative majority was so unsatisfied with the narrow problem that they had been asked to solve that they made the lawyers retry the case so they could strike down a pillar of clean elections law and radically redefine the First Amendment.

The Court didn't seem to care for judicial restraint when it invented a brand new legal principle in order to make it harder for consumers to sue drug companies for inadequate warning labels, or when it dramatically undercut the ability of consumers to file class action lawsuits. Nor was it restrained in the part of the Affordable Care Act decision where the five conservative justices went out of their way to radically restrict Congress' constitutional authority to regulate commerce.

And even in this term, the Court's right-wing majority has signaled its willingness to make sweeping decisions undercutting basic American rights. The Court might strike down the critical Section 5 of the Voting Rights Act if the five conservative justices determine, despite overwhelming evidence to the contrary, that people of color in the covered jurisdictions do not face disproportionate barriers to the right to vote. The same five justices have signaled their willingness to overturn their own recent ruling in order to ban colleges from expanding opportunity for students of color.

The justices may be exceptionally cautious in finding constitutional protections for marriage equality. But in many other areas that affect all of our lives, they have not been nearly as shy.